The limits of EU policymaking have been tested by the draft tobacco directive. Bold legislation may nonetheless emerge..
On Dec. 19, 2012, the European Commission published its much-awaited proposal for a new tobacco-products directive. The preparation of the proposal -- as epitomized by the enforced resignation of John Dalli as European commissioner for health and consumer policy -- has been highly convoluted, lobbying-intensive and, at times, grotesque.
The drafting process has not only highlighted the disparity of resources between the industry on the one hand, and the health community on the other, but has also questioned -- by showing their limits -- the principles that guide the consultation process, regulate the representation of interests, and govern the independence of European commissioners and the European Parliament's exercise of its oversight powers.
Yet, if approved, this directive could still affect millions of lives, shape the tobacco industry and put the EU back at the forefront of tobacco regulation after a decade of significant scientific, market and international developments. The EU's 2001 directive was pioneering, introducing far-reaching measures such as mandatory health warnings and a ban on misleading descriptions (such as 'mild' or 'light'). The new directive would go beyond the minimum requirements of the public health treaty signed by 176 countries -- the Framework Convention on Tobacco Control (FCTC) of 2005 -- in its efforts to reduce the attractiveness of tobacco consumption.
The Commission's proposals to ban slim cigarettes and menthol cigarettes (as well as other tobacco products with characterizing flavours) are ground-breaking. Though the Commission eventually decided (mainly for legal reasons) not to embrace plain packaging, its choice -- to opt for highly standardized packaging -- will result in packets very close to the plain pack pioneered by Australia. Combined (graphic and pictorial) warnings would cover 75 percent of a package; the remaining surface would represent the last available channel for tobacco companies to display their brand and market their products, as tobacco advertising is banned. Since member states are free to introduce more stringent standards, tobacco packaging may become even more standardized, with plain packaging a possible result.
The Commission's proposal illustrates how most tobacco-control tools today no longer aim to inform the public about the adverse effects of consumption but to change social norms, adjusting the 'choice environment' to denormalize tobacco.
While the proposal focuses predominantly on tobacco, it also extends the directive's scope to include products that do not contain tobacco, but nicotine, such as electronic and herbal cigarettes. Their marketing material must now carry health warnings. In addition, e-cigarettes are subject to the same authorization required for medicinal products. It also maintains the ban on oral tobacco products with the usual exception for snus in Sweden.
This stance to alternative products favors an abstinence-only policy and de facto rejects a risk-reduction policy of encouraging smokers to switch to nicotine-delivery products that carry less risk. This approach may appear understandable (proponents fear that these products might become a gateway to future consumption). It also seems somehow inevitable, since Big Tobacco has earned mistrust. Nonetheless, it ignores millions of addicted smokers: They are left with only one choice -- to continue to consume nicotine by smoking or not to consume nicotine at all.
Still, the proposal leaves the door open to 'novel tobacco products', be they smokeless or for smoking, that could be marketed (provided that they are accompanied by scientific and marketing studies and that member states are notified six months in advance).
The Commission's abstinence-only approach is questionable. However, overall, the proposal appears a bold and solid text that has proved resilient to the scandal of Dalli's departure. This initiative -- hugely important economically and politically -- will continue to test not just the limits of the EU decision-making process, but also the integrity of members of the European and national parliaments and the Council of Ministers. Forewarned is forearmed.
Alberto Alemanno is Jean Monnet Professor of EU Law and Risk Regulation at HEC Paris and Adjunct Professor of Global Risk Regulation at Georgetown University Law Center. He is the editor of Better Business Regulation in a Risk Society, published recently by Springer.